Thelander v. Moore

SEARS, Justice,

concurring.

I agree that the Petition for Writ of Mandamus must be denied. However, I do not agree that the remedy is by appellate review.

The majority opinion concludes that the court entered a final judgment and found the promissory note was a liability of the partnership. Further, they found that the record on appeal could be reviewed to determine if the evidence supported the finding of partnership liability. However, the issue Relator wants determined by a jury is his liability on the partnership note based on his allegations of fraud and self-dealing. There is no evidence that the court made any findings as to Relator’s liability on the note or Carl’s fraud and/or self-dealing. The court specifically carved this cause of action out of final judgment and reserved Relator’s right to pursue this cause of action on a separate trial, i.e. “... payment of its [partnership] liabilities is made without prejudice to the rights of either party to hereafter assert, in another proceeding, any claims between them arising out of the business of their partnership.”

The theory that Relator can bring a separate suit for his liability on partnership debts is based on the reasoning that this type of a cause of action does not arise until after the accounting is completed. Mitchell Resort Enterprises v. C & S Builders, Inc., 570 S.W.2d 463 (Tex.Civ.App.—Eastland 1978, writ ref'd n.r.e.).

The judgment of the trial court was not final as to Relator’s liability on the note because the court specifically carved that cause of action out of its final judgment. The remedy, therefore, is a separate lawsuit, not appeal of an issue that remained undecided by the court.